Opinion
# 2013-049-020 Claim No. 122132 Motion No. M-82869
04-23-2013
VINCENZO DIMAGGIO and PATRICIA DIMAGGIO v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss the claim that alleges violations of Labor Law §§ 200, 240 (1), and 241 (6), is granted. The claim fails to give rise to a cause of action based upon State's ownership of the worksite.
Case information
UID: 2013-049-020 Claimant(s): VINCENZO DIMAGGIO and PATRICIA DIMAGGIO Claimant short name: DIMAGGIO Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122132 Motion number(s): M-82869 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Talisman & Delorenz, P.C. Claimant's attorney: By: Robert G. Abruzzino, Esq. Eric T. Schneiderman, New York State Attorney Defendant's attorney: General By: John M. Hunter, Assistant Attorney General Third-party defendant's attorney: Signature date: April 23, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In a claim filed December 13, 2012, claimant Vincenzo DiMaggio seeks damages for violations of Labor Law §§ 200, 240(1), and 241(6), based upon injuries he allegedly sustained in the course of his employment at a construction project at Franklin D. Roosevelt Four Freedoms Park (the "Park") on Roosevelt Island on August 12, 2011. His wife, claimant Patricia DiMaggio, seeks damages for loss of services, consortium, society and companionship. The claim alleges that the State owns the worksite where the injury took place (Claim ¶ 5), and makes various other boilerplate allegations regarding the State's responsibility for claimants' injuries.
The claim states, for example, that defendant "operated" and maintained the construction site at issue (Claim ¶¶ 6, 7), hired the workers (id. ¶ 11), and served as the contractor and construction manager (id. ¶¶ 12-14). Claimants make no reference to these allegations in response to the present motion.
In lieu of an answer, defendant State of New York filed a motion to dismiss the claim on the grounds that this Court lacks jurisdiction thereover, and that the claim fails to state a cause of action against the State. Defendant supports its motion with the affirmation of Assistant Attorney General John Hunter, who avers that the State does not own the construction site, and that the entirety of Roosevelt Island is owned by the City of New York ("NYC" or "the City"), which leases it (with the exception of 21 acres where two hospitals are located) to the Roosevelt Island Operating Corporation ("RIOC") (Aff. in Supp. ¶ 7). According to the affirmation, RIOC is "charged with maintaining, operating and developing" the Island (id. ¶ 6).
Claimants characterize the motion as one for summary judgment. The notice of motion does, indeed, cite both CPLR 3211 (motion to dismiss) and 3212 (summary judgment), but the affirmation in support characterizes the motion as the former.
Hunter also avers that the Park is "operated by the Four Freedoms Park Conservancy" ["FFPC"] (id. ¶ 8). Defendant annexes to its motion papers information from the website of the State Division of Corporations regarding the FFPC, which indicates that it is a domestic not-for profit corporation, and a web page from the Park's website referencing another entity, Franklin D. Roosevelt Four Freedoms Park, LLC (FFP LLC). The State's submission does not discuss the relationship between these two entities, and the documentary evidence provided by defendant does not reveal the role that either plays vis-a-vis the Park.
Hunter does not claim personal knowledge for any of the facts set forth in his affirmation, but cites prior caselaw which recounts the history of the ownership of Roosevelt Island, and sets out the governing statutory provision for RIOC.
Claimants oppose the motion, also by an affirmation of counsel not based on personal knowledge. They argue that the State may have a "potential ownership interest in the property" where the accident occurred (Aff. in Opp. ¶ 8), although they acknowledge that based on counsel's own research, they were "under the belief that Roosevelt Island, and in turn, the FDR Four Freedoms Park, was owned by the City of New York" (Id.). They cite as the basis for the State's possible ownership the answer filed in an action arising out of the same incident commenced in State Supreme Court, in which the City of New York ("City"), FFPC and FFP LLC denied "knowledge or information sufficient to form a belief" as to whether they owned the accident site. Claimants also argue that dismissal would be "premature" at this early stage of the litigation (Aff. in Opp. ¶ 11).
Claimants characterize the answer as containing a denial of ownership by these entities (Aff. in Opp. ¶ 8), but the Answer itself reflects only a denial that they possessed sufficient information to admit or deny the allegation (Answer, DiMaggio v City of New York, et al. [Aff. in Opp. Ex. A] ¶¶ 11-14).
Labor Law § 240(1) and § 241(6) both impose "nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities" (Lieberth v Walden, 223 AD2d 978, 979 [3d Dept 1996], citing Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500 [1993]), and an owner may be held liable for injuries even when the owner did not control the worksite or contract for the work (see Sanatass v Consolidated Inv. Co. Inc., 10 NY3d 333, 339 [2008]).
Ownership alone is not enough to demonstrate liability; there must also be some "'nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest'" (Morton v State of New York, 15 NY3d 50, 56 [2010], quoting Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]). Moreover, to sustain their claim under Labor Law § 200, claimants must demonstrate that the State exercised control or supervision over the work being performed (if the accident arose from the manner in which the work was performed), or created a dangerous condition or had actual or constructive notice of such condition (if the accident arose from a condition on the premises (see Giovanniello v E.W. Howell, Co., LLC, 104 AD3d 812 [2d Dept 1992]). Since the State has shown that it does not own the property, the "nexus" requirement is not at issue. And as noted (see supra note1), claimants make no assertion in its response to this motion that the State had any direct involvement in the project, much less that it participated sufficiently to meet the requisites of a section 200 claim.
On a motion to dismiss supported by extrinsic evidence, the Court must determine whether "the essential facts [as stated in the claim] have been negated beyond substantial question by the affidavits and evidentiary matter submitted" (Blackgold Reality Corp. v Milne, 119 AD2d 512, 513 [1st Dept 1986], affd on other grounds 69 NY2d 719 [1987]). For reasons set forth below, I find that this is the case here.
While defendant has not provided an affidavit on personal knowledge, it points to statutory authority and case law that makes clear that the City is the owner of Roosevelt Island (see generally Roosevelt Islanders for Responsible Southtown Dev. v Roosevelt Is. Operating Corp., 291 AD2d 40, 43 [1st Dept 2001] ["the City of New York . . . which owns the Island"]). As set forth in Roosevelt Islanders, in 1969 the City entered into a 99-year lease with the New York State Urban Development Corporation ("UDC") (id. at 43; see also McKinney's Uncons Laws of NY § 6386 [referencing 1969 agreement in which New York City "leased substantially all of Roosevelt Island to the New York State urban development corporation"]). In 1984, the Legislature enacted the RIOC Act (McKinney's Uncons Laws of NY § 6385), which created RIOC and transferred to it all rights and obligations of UDC with respect to supervision of the Island's development (Id.).
Neither RIOC, nor FFPC and FFP LLC, are agencies or subdivisions of the State. RIOC is a "body corporate and politic constituting a public benefit corporation" (McKinney's Uncons Laws of NY § 6387). It has the power to sue and be sued in its own name (McKinney's Uncons Laws § 6388), and "[a] notice of claim, served in accordance with the provisions of section fifty-e of the general municipal law, shall be a condition precedent to the commencement of an action against the corporation, its officers, directors and employees" (McKinney's Uncons Laws § 6392). Since RIOC's authorizing statute is silent with regard to jurisdiction of the Court of Claims, it is subject to suit only in a court of general jurisdiction (see Douglas v State of New York, UID No. 2010-030-505 [Ct Cl, Scuccimarra, J., Jan. 6, 2010] [Court of Claims lacked jurisdiction over Battery Park City Authority, as governing statute did not provide for such jurisdiction, and fact that authority is subject to General Mun. Law § 50-e is "indicative of Legislative intent that Supreme Court be the forum for suit"]).
According to the information from the web page of the State Division of Corporations annexed to defendant's papers, FFPC is a domestic not-for profit corporation. FFP LLC, is a limited liability corporation (see Reed Found., Inc. v Franklin D. Roosevelt Four Freedoms Park, LLC, 37 Misc 3d 1226[A] [Sup Ct, NY County 2012]). Both these entities are therefore subject to suit in a court of general jurisdiction as well.
Claimants, for their part, have offered no basis to contest the statements regarding ownership of the Island set forth in the State's submission, and in the caselaw cited above. Indeed, their counsel concedes that its research led to the same conclusion, until receipt of New York City's answer in the Supreme Court suit (see supra at 3). But the fact that New York City has denied ownership of the worksite in claimants' parallel Supreme Court action (or - put more accurately - stated in its answer that it lacks sufficient knowledge to admit or deny such), does not constitute evidence that the State is the owner of the property.
Finally, claimants' conclusory contention that further discovery may turn up some evidence of State ownership which they cannot specify at present is, without more, insufficient to warrant denial of claimants' motion (see Rochester Linoleum & Carpet Ctr., Inc. v Cassin, 61 AD3d 1201, 1202 [3d Dept 2009] [a motion to dismiss should not be denied where claimant "provides nothing beyond speculation that further discovery would yield material evidence"]).
The State's submission in this case is admittedly limited, and an affidavit from someone with personal knowledge (such as an individual who could attest to which parks belong to the State) would be a more optimal means of disproving ownership (see Patriss v State University of New York, UID No. 2012-039-287 [Ct Cl, Ferreira, J., Feb. 23, 2012] [ "submission of evidentiary proof" on ownership, such as "an affidavit by someone with knowledge . . . would have been preferable"]). Nonetheless, where - as here - the State gives a specific and detailed account of the ownership of the precise area at issue, and that account is adequately supported by its submission (in this case largely via caselaw and statute), it has demonstrated prima facie that it does not own the property (cf. Arrington v State of New York, UID No. 2011-038-531 [Ct Cl, DeBow, J., May 24, 2011] [granting State's motion to dismiss claim for negligence at charter school; citing statute and caselaw for holding that State had no responsibility for such schools]; McCormick v State of New York, UID No. 2004-016-055 [Ct Cl, Marin, J., Sept. 17, 2004] [granting State's motion to dismiss negligence claim on ground that State did not construct or reconstruct Queens Boulevard, based on reading of statute and caselaw regarding highway ownership]). Since claimants make no showing at all to the contrary, dismissal of the action is warranted.
In view of the foregoing, it is
ORDERED that motion no. M-82869 be granted and that claim no. 122132 be dismissed.
April 23, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered
1. Defendant's Notice of Motion, Affirmation in Support, and annexed exhibits.
2. Claimants' Affirmation in Opposition, and annexed exhibit.
3. Defendant's Reply Affirmation, and annexed exhibit.